The Witch-Trail of a Chief Justice

Before the term witch-trial entered public discourse as synonymous with injustice and persecution, women who were accused of being witches by their enemies were tried by their accusers, found guilty by their accusers and burnt at the stake by their accusers.

Shirani Bandaranaike, Sri Lanka’s first female chief justice, has been charged by her enemies. She too will be tried by her accusers and condemned by her accusers, who will lose no time in implementing that executive-ordained judgement. She will be burnt at the stake of calumny and injustice as a warning to any who dares to think of standing in the way of the Rajapaksa juggernaut.

“Any who have borne her ill now have ample opportunity to bring against her whatever accusations they please…. All the indictments retain their force and validity however perfect her answers to them… The judges invent clever devices to build up new proofs of guilt to convict her to her face, so that when reviewing the trial, some university faculty can confirm her burning alive”.Friedrich von Spee (Precautions for Prosecutors)

The composition of the Parliamentary Selected Committee renders a guilty-verdict against the CJ a foregone conclusion. It would matter little, even if she manages to prove beyond any doubt, that all the charges against her are nothing but vicious and vengeful lies, the febrile imaginings of her implacable enemies. The UPFA members of the PSC will vote to impeach her, since that is the will of the Rajapaksa Brothers. And there are seven UPFA members in the PSC, out of a total of 11, making it an entity biased beyond acceptance.

Her accusers will be her judges; and her judges will be her executioners. Even now, at the command of the executive, they are gathering the faggots for the auto da fe they hope to light under her, ere long.

In witch-trials, the charges did not really matter, because the witches were presumed guilty, always. The impeachment is no better. In a sense, the charges against the CJ are so shoddy because in the real scheme of things they do not count. Unlike in a court of law where shoddy charges can lead to an acquittal, at the PSC the quality and the veracity of the charges would be of no import. A majority of the judges – 7 out of 11 – will find the Chief Justice guilty of whatever crime the executive chooses to charge her with, from the most heinous to the most commonplace, from the most ordinary to the most fantastic. The Rajapaksas can accuse the CJ of being Vellupillai Pirapaharan in disguise or the killer of cock-robin. Those seven UPFA members will find her guilty as charged, irrespective of how absurd or bizzare the charges are.

The CJ stood in the way of the Divineguma Bill and that is the main reason for the impeachment, as UPFA parliamentarian Arundika Fernando announced, in a rare moment of truth-telling: “The Chief Justice is being impeached. There is no need to hide the truth. The government wants to remove her because she impeded the setting up of the Divineguma Department as a national movement”(Inside Lank – 6.11.2012).

The impeachment is thus a witch trail which is also a warning to others. And it is a means to displace an unreliable chief justice and replace her with someone more concordant with the Rajapaksa power-project, such as the former AG Mohan Peiris,who lied with memorable panache in Geneva about the whereabouts of Prageeth Ekneligoda.

Should the Opposition Boycott the PSC?

Last week, the Opposition, for once, hit the nail right on the head, when it objected to the composition of the PSC.

“The UNP, TNA and JVP group leaders at a meeting with the Speaker…requested him to increase the allocation of four seats in 11 member PSC to six, if there was to be any credibility in the investigation process” (The Island – 9.11.2012).

The Opposition is right. The only way the impeachment can become a less of a travesty is if the composition of the PSC is changed to make it less biased. The Speaker is expected to give his decision on Monday. If the Speaker refuses to change the composition of the PSC to an acceptable degree, the opposition must decide, and decide jointly, about their participation in the PSC. And there are compelling arguments both against and for a boycott of the PSC by the opposition.

Boycotting the PSC will enable the regime to act even more like a bull in a china shop. Without the restraining influence (albeit rather limited) of opposition members, the UPFA members will be totally free to ride roughshod over the CJ. By abstaining, the opposition will make it that much easier for the UPFA to turn the PSC into the equivalent of President Chandrika Bandaranaike Kumaratunga’s Presidential Commissions. Those Presidential Commissions comprised of her handpicked yes-men (including Sarath N Silva); they hounded the dead and the living and turned truth on its head to give the verdict desired by the appointing authority. In the absence of the opposition, it will be that much easier for Mahinda Rajapaksa’s underlings to do to the PSC what Chandrika Bandaranaike Kumaratunga’s underlings did to the presidential commissions.

On the other hand, if the imbalance in the PSC is not rectified, the verdict of the PSC will become a foregone conclusion. The UPFA members of the PSC will find the CJ guilty irrespective of any and all evidence to the contrary. They cannot do otherwise. In such a context engaging with the PSC will be an exercise in futility. More dangerously it will give a degree of legitimacy to what is essentially a modern day version of a witch-trial. If the opposition takes part in an unreconstructed and imbalanced PSC, they will be bestowing a veneer of credibility on the impeachment itself.

If the Speaker finds some way to refuse the Opposition’s reasonable request, it would be an indication that the Rajapaksas do not care how the impeachment will be perceived by the nation and the world, that they have no concerns about credibility and appearances. All they want is to get Shirani Bandaranaike out. In such a context, boycott may be a less harmful option than participation, because participation will in effect become an act of collaboration with the regime’s plan to oust the chief justice and subjugate the judiciary.

Whatever decision the opposition makes, it must be done in unison. The very worst outcome is for some members of the opposition take part in the PSC and some to boycott it. That would be tantamount to ensuring a mammoth win for the Rajapaksas even before the PSC commences its sittings.

Anti-Constitutional Law-making

Sri Lankan judiciary has not always guarded its independence as jealously it should have. But it has never succumbed to the executive totally either.

Going by recent judicial ruling, it is clear that the Rajapaksas are trying to build up their power and undermine democracy in a manner unconstitutional. The two Supreme Court rulings on the Divineguma Bill, which pinpointed several provisions which are against the constitution, are cases in point. Other recent SC judgements too have highlighted anti-constitutional provisions in bills prepared by the Legal Draftsman’s Department which is currently functioning under the president.

For instance, a three-judge bench consisting of Justices Shirani Thilakawardana, Priyasath Dep and Eva Wanasundara ruled that two clauses of Appropriation Bill (2012) are inconsistent with the constitution because they “violate the constitutional provision giving parliament full control over public finance, because they provide too much discretion to the executive in the disbursement and raising of public funds” (Colombo Telegraph – 7.11.2012). Another bench comprising of Justices PA Ratnayake, Chandra Ekanayake and SI Imam ruled that a “provision relating to the detention of persons in the Criminal Procedure (Special Provisions) Bill (2012) also inconsistent with the constitution” (ibid).

In confluence, these rulings reveal two cardinal developments: an increasing determination on the part of the Rajapaksas to violate the constitution in their efforts to amass more power; and an increasing unwillingness on the part of the judiciary to provide a legal cover to this unconstitutional power-grab.

Little wonder then the Rajapaksas want to light an auto da fe under the Chief Justice, both as a punishment to her and a warning to the judiciary.

The Rajapaksas project consists of transforming a flawed democracy into a familial oligarchy with dynastic succession. This would require a new constitution. So far the Rajapaksa way had been to change the constitution, one amendment and one law at a time. This can be done only with a totally supine judiciary. If the judiciary places its duty to the constitution above all other considerations, the Rajapaksas’ constitutional makeover cannot work.

In a recent interview Brother Basil reiterated that Janasabha will replace the provinces as the unit of devolution; that old scheme which transfers the powers enjoyed by elected councils to unelected bodies directly under a Rajapaksa-thumb will be the pith and substance of the 19th Amendment which the Siblings are eager to enact. But for this drastic constitutional transformation to work, the Rajapaksas need a subjugated judiciary. If the chief justice can be impeached, and a new chief justice who does all Rajapaksa bidding's can be appointed, the path to the Rajapaksa-empowering 19th Amendment can be cleared.

The impeachment not only signifies a great leap forward in Sri Lanka’s march towards familial despotism; it also creates a deadly precedent. Once the momentous step of holding a witch trial against a chief justice is taken, it can be taken again and again, against any vertebrate judge.

If the impeachment motion succeeds in breaking the back of the judiciary, the times are likely to become bleak, for all except Rajapaksa kith and kin. In such a Sri Lanka, one need not be surprised to hear Gotabhaya Rajapaksas advocating ‘Leadership Training’ as a solution to judicial decisions ‘bad’ in Rajapaksa eyes. Indeed, if the Rajapaksas have to send every senior and junior judge and every senior and junior lawyer for ‘Leadership Training’ at an army camp to bring the judiciary too to the level of submission prevalent in the legislature, the military or the bureaucracy, they will. After all, if they can inflict that particular humiliation of school principles, there is no one they are likely to spare in the interests of their power project.

In the end, brevet Colonel X will hear a case in which Brevet Colonel Y and Brevet Colonel Z will represent the prosecution and the defence. And the Rajapaksas will judge.